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Solorio v. Lynch

United States District Court, E.D. California

July 7, 2016

ALMA GARCIA SOLORIO, Plaintiff,
v.
LORETTA LYNCH, U.S. DEPARTMENT OF HOMELAND SECURITY, and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.

          ORDER GRANTING MOTION TO DISMISS (Doc. No. 17)

         This matter is before the court on defendants' motion to dismiss the complaint. (Doc. No. 17.) A hearing on the motion was held on June 21, 2016. Assistant U.S. Attorney Audrey Hemesath appeared on behalf of defendants. Attorney Frank Sprouls appeared on behalf of plaintiff. The court has considered the parties' briefs and oral arguments, and for the reasons set forth below, will grant defendants' motion.

         BACKGROUND

         A. Statutory and Regulatory Overview

         Pursuant to the Immigration and Nationality Act ("INA"), United States citizens and lawful permanent residents may file an I-130 visa petition with U.S. Citizenship and Immigration Services ("USCIS") on behalf of a family member to obtain lawful permanent residency in the United States. See 8 U.S.C. §§ 1153, 1154. The number of family-sponsored immigrants, excluding immediate relatives, is limited to approximately 480, 000 per fiscal year. See 8 U.S.C. § 1151(c)(1)(A). The INA further divides these family-sponsored immigration visas into a series of preference categories depending on the status of both the petitioner and the intended beneficiary: "F1" for unmarried sons and daughters of U.S. citizens, "F2A" for spouses and children of lawful permanent residents, "F2B" for unmarried sons and daughters of lawful permanent residents, "F3" for married sons and daughters of U.S. citizens, and "F4" for brothers and sisters of U.S. citizens. See 8 U.S.C. § 1153(a). If the I-130 petition establishes any of these qualifying relationships, the petition is approved and the beneficiary is placed "in line" in the appropriate preference category, based on the "priority date."[1] Because annual demand exceeds the availability of family-sponsored visas, qualifying beneficiaries may wait several years before a visa is available. In addition, the INA imposes limits on the number of immigration visas made available to beneficiaries of a single country per fiscal year. See 8 U.S.C. § 1152(a). Every month, the U.S. Department of State, in coordination with USCIS, publishes a visa bulletin listing "cut-off dates" based on family-sponsored visa preference category and country of origin.[2] If the listed cut-off date is later than a beneficiary's priority date, the priority date is "current" and an immigration visa is available to the beneficiary.

         On July 27, 2006, the Adam Walsh Child Protection and Safety Act ("AWA") was signed into law, with a stated purpose "to protect the public from sex offenders and offenders against children." Pub. L. 109-248; 42 U.S.C. § 16901. Among other aspects, the AWA amended sections of the INA to preclude any U.S. citizen convicted of "a specified offense against a minor" from petitioning for a family-sponsored visa, "unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition . . . is filed." 8 U.S.C. § 1154(a)(1)(A)(viii)(I). The term "specified offense against a minor" is defined by 42 U.S.C. § 16911. Id.

         On February 8, 2007, the Associate Director of USCIS issued guidance regarding the implementation of the AWA's amendments to the INA. Interoffice Memorandum from Michael Aytes, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006 ("Aytes Memo").[3] The Aytes Memo notes that under existing law, USCIS may revoke an approved I-130 petition for good and sufficient cause. Aytes Memo at 3 (citing 8 U.S.C. § 1155). If USCIS determines that a U.S. citizen petitioner has been convicted of a "specified offense against a minor, " it will make a discretionary no-risk determination pursuant to § 1154(a)(1)(A)(viii)(I). Id. at 5. Where none of the intended beneficiaries of an I-130 petition are children,

the adjudicator must closely examine the petitioner's specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. For example, past acts of spousal abuse or other acts of violence must certainly be considered. The fact that a petitioner's past criminal acts may have been perpetrated only against children or that the petitioner and beneficiary will not be residing either in the same household or within close proximity to one another may not, in and of themselves, be sufficient to convince USCIS that the petitioner poses no risk to the adult beneficiary. The burden is upon the petitioner to prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary.

Id. at 7 (emphases added).

         B. Factual Background [4]

         On July 22, 1992, plaintiff Alma Garcia Solorio's father, Rafael Garcia-Valdez, a lawful permanent resident, petitioned for family-sponsored visas on behalf of his spouse and his two then-minor children. (Doc. No. 1-1, Ex. B; ROP at 118.) On August 26, 1992, Garcia-Valdez's petition was approved. (Doc. No. 1-1, Ex. B.) Garcia-Valdez's beneficiaries, including plaintiff Alma Garcia Solorio, fell within the F2A preference category.

         On December 19, 1996, after plaintiff Garcia Solorio turned 21 years of age, Garcia-Valdez submitted a new petition on behalf of Garcia Solorio under the F2B preference category. This petition was approved on February 20, 1997. (Doc. No. 1-1, Ex. C; ROP at 59.) On July 21, 2008, Garcia-Valdez became a U.S. citizen. (Doc. No. 1-1, Ex. E.) Consequently, Garcia Solorio's status changed to the higher-priority F1 visa preference category. (Doc. No. 1 at 5; ROP at 65.) Assuming Garcia Solorio's priority date was July 22, 1992, [5] her visa status would have been current in August 2008. (See Doc. Nos. 1 at 5; 1-1, Ex. H.)

         In April 2009, Garcia-Valdez was convicted of a lewd act with a child under the age of 14, in violation of California Penal Code § 288. (See Doc. Nos. 1 at 6; 1-1, Ex. K; ROP at 98-101.) On December 27, 2011, USCIS notified Garcia-Valdez of its intent to revoke the previously approved visa petitions because his conviction appeared to constitute a "specified offense against a minor" and thereby subject to 8 U.S.C. § 1154(a)(1)(A). (ROP at 74.) USCIS further provided Garcia-Valdez an opportunity to submit a response prior to the agency's final determination with respect to the previously approved visa petitions. (Id.) Garcia-Valdez submitted a response and evidence to support his argument that he posed no risk to the safety of any beneficiary. (See ROP at 46.) On September 4, 2012, USCIS revoked the visa petition and issued a written determination finding that Garcia-Valdez had failed to meet his burden of proving beyond a reasonable doubt that he posed no such risk. (ROP at 44-47, 49.) Garcia-Valdez appealed the ruling to the Board of Immigration Appeals ("BIA"). The BIA dismissed the appeal, finding that the no-risk determination was unreviewable under the INA. (ROP at 3-4.)

         On July 20, 2015, plaintiff commenced this action challenging the propriety of the administrative determination to revoke her a family-sponsored visa petition as well as the constitutionality of 8 U.S.C. § 1154(a)(1)(A)(viii)(I). (Doc. No. 1.) On March 7, 2016, defendants filed the instant motion to dismiss as to each of the four claims stated in the complaint. (Doc. No. 17.) On March 28, 2016, plaintiff filed her opposition to that motion. (Doc. No. 18.)

         In her opposition, plaintiff agrees to dismissal of two of her claims. (See Id. at 4, 19.) Thus, only two claims remain pending before the court. First, plaintiff claims that the September 4, 2012 revocation of the visa petition was arbitrary, capricious, and failed to conform to the government's own guidelines, under the Administrative Procedure Act ("APA"). Second, plaintiff claims that the provision of the AWA barring Garcia-Valdez from petitioning ...


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